Government Agent or Not a Government Agent? How to Tell When a Solicitation by the Government Is Legitimate and What to Do if It Is.

The number of health care providers that are reporting potential scams for information or money is on the rise, as are general fraud schemes around the country. Consider the following two recent scenarios, which are based on real-life events.

Dr. Doe has received multiple phone calls on his cell phone from someone who says they are from the DEA and telling him he is being investigated. But Dr. Doe has not received any communication (on-site visits, letters, or email) about being investigated. The person who called Dr. Doe also told him they are freezing his bank accounts. The calls were threatening, and the caller seemed to know a lot about Dr. Doe’s banking information After blocking the caller on his cell phone, Dr. Doe’s office began receiving calls from the same person.

A radiologist working remotely reported a concerning incident in which a person claiming to be an “inspector” for CMS appeared without advance notice at her home. The individual said he was with Deloitte, a CMS contractor. The radiologist was understandably reluctant to allow this individual into her home. Although the “contractor” showed an ID, he didn’t allow it to be photographed.

Let’s discuss Scenario 1 first. Dr. Doe is concerned that the caller is actually a DEA agent and that his accounts may be frozen. This is certainly a scam. As a preliminary matter, government agents almost never reach out by phone or email to tell a person that they are under investigation. In fact, they almost never tell a person they’re being investigated at all. In the rare event that an agent might reach out by phone, it would usually be to set up an appointment to speak with someone or to deliver a subpoena. As a second matter, the DEA agent would generally not be the person to freeze a bank account—this would likely go through the U.S. Attorney’s Office, who would file the appropriate paperwork with the court to do so. And no DEA agent worth his or her salt would warn someone that they were going to freeze a person’s bank accounts if they actually intended to do so, as this would cause the person to transfer the money immediately and hide it in another account. In short, none of this adds up from the perspective of a legitimate investigation.

These health-care related schemes are part of a broader pattern of using the guise of official government sanctions to shake down people for money. Such schemes include purported court officials calling up to say that there is a warrant out for the person’s arrest for failure to show up for a proceeding and informing the person that they can get the matter resolved by immediately paying a sum of money by wire or other non-traceable means. Again, as a general rule, assuming that there would be some outstanding violation or fine due, you should get notice through some means other than a telephone call demanding immediate payment.

Here’s an easy way to handle such calls: tell them you need to verify their identity. Ask them for their name, their position, what agency they’re from (and if they’re a government agency, where the agency is located), and the name of their supervisor. Tell them that you will look up the number for their agency and that you will get back to them. If they are legitimate, they will not mind your doing so. If they balk, tell them straight out that you believe that it is a scam and that you will follow through with the agency they purport to be representing to confirm it’s a scam. Usually they will hang up on you at this point, but you can certainly beat them to it.

Bottom line: It’s hard to think of any instance in which a call demanding immediate remittance of money from a purported government official will be legitimate, so exercise extreme skepticism when fielding these calls.

Scenario 2 is a bit more complicated. Government agents (and contractors) can conduct regulatory inspections/visits as provided for by statute or law. If a law enforcement agent shows up at your facility or home-based office, they should be able to identify the basis for their regulatory visit. If they do not have such a basis and/or cannot provide it to you, you have the right to refuse to allow them entry until such time as you are satisfied that the agents have the right to perform an inspection. If an agent presents themselves, they should automatically present their credentials for you to verify. You should always ask for the agent’s business card. They should give you one upon request. It’s another way for them to verify who they are. If they seek to hide their identity (by not allowing you to record their information or by not giving you their business card) this is a red flag that should be addressed with the agents. Simply tell the purported agent that you have every intention of complying with government regulations, but that you need to ensure that the agent is who they say they are and that the agency has the authority to conduct such a visit given the protected nature of the information sought.

Even where you are sure that the person’s credentials are legitimate, there are several important things to keep in mind when interacting with government agents. Firstly, while you may be obliged to communicate with an agent during a regulatory visit regarding the items being inspected, you are not obliged to undergo an interrogation of the business practices of the organization. As a general rule, you should not agree to an informal interview with an agent. The best practice in this regard is to say that, while you certainly intend to be cooperative, you don’t feel comfortable answering questions at that time. You may also state that your company has a policy of coordinating with the company’s lawyer when responding to government inquiries. A legitimate agent will never advise you not to seek legal advice or push you to talk once you state that you’d like to consult with counsel before speaking with them. Furthermore, agents will not hold it against you if you “lawyer up” or automatically think you have something to hide if you do so. They are used to people consulting with counsel. A person’s decision to consult a lawyer can never be used against them in an investigation, and they know that as well. 

Always remember that agents cannot compel you to speak with them about a substantive matter outside of the purpose of the regulatory visit when they show up to your facility. The only way that the government can compel testimony is through a subpoena for testimony. Agents know this, but they often like to get information by playing nice and asking casual questions during a regulatory visit in the guise of just “getting information.” This tactic usually involves the agents telling the person they’re interacting with that the agents do not suspect them (or anyone else) of wrongdoing; they just want to get some information on what’s going on. In rare cases, where the agents actually have evidence of some wrongdoing, the agents will try to pressure the workers more (i.e., “we don’t suspect you of any wrongdoing, but if you know anything it would be good for you to tell us about it.”). Either way, the employee has no one of knowing whether he/she could be a target of an investigation (and thus susceptible to self-incrimination) and should politely decline to provide information until they are able to speak with their employer and/or a lawyer.           

Bottom line: It’s important to verify an agent’s credentials and the basis for the inspection during a regulatory visit. However, keep in mind that sometimes the government agents will use these inspections to get information unrelated to the regulatory visit. the company should have a policy in place in which their employees are trained to refer any questioning by agents to a supervisor or to company counsel. This policy should be communicated clearly to those who would likely be the agents’ first contact at the facility. As always, consultation with counsel during or after such a visit is recommended.